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In Re Cell Tower Litigation

August 26, 2011


The opinion of the court was delivered by: Hon. Roger T. Benitez United States District Judge




Plaintiffs American Tower Corporation and T-Mobile West Corporation (collectively "ATC") and Defendants City of San Diego, City Council of City of San Diego, and Development Services Department of City of San Diego (collectively "the City") have filed cross-motions for summary judgment in Case No. 08cv435 BEN (WVG). (Dkt. Nos. 234, 235.) The parties each seek summary judgment on certain claims concerning the denial of conditional use permits ("CUPs") for wireless communications facilities located at 4350 Otay Mesa Boulevard ("Border site") and 9060 Friars Road ("Mission Valley"). For the reasons discussed below, the Court grants in part and denies in part both motions for summary judgment.


ATC owns a 90-foot telecommunications tower and associated buildings at the Border site and 180-foot lattice tower and associated buildings at the Mission Valley site. Telecommunications providers, like Plaintiff T-Mobile, use or lease space on the towers to provide wireless services. The previous CUPs for the Border and Mission Valley sites were issued in 1995 and 1996 respectively, for a period of ten years. The CUPs did not provide for extensions or renewal. Rather, both explicitly required the submission of new CUP applications. The Mission Valley CUP specifically required the removal of all antennas and equipment upon expiration, and the Border CUP required all activity cease and that the site be returned to its prior condition upon expiration.

The new CUP applications sought to maintain the sites at existing height and design despite City regulations that require such facilities be designed to be minimally invasive through design, use of architecture, landscape architecture, and siting solutions. Throughout the various stages of the proceedings before the City, ATC refused to make any concessions with regard to the height or design of the towers other than with regard to landscaping and painting, and refused to provide any site-specific analysis of the impact on wireless coverage from lowering the tower or reconfiguring a lower tower in connection with additional lower towers.

Eventually, following a lengthy extension of time by the agreement of the parties, the Hearing Officer denied the applications because the towers failed to comply with the regulations. ATC appealed to the Planning Commission, and the Planning Commission upheld the Hearing Officer's decision.


Summary judgment should be granted when "the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." FED. R.CIV. P. 56(a). The moving party bears the burden of demonstrating the absence of a genuine issue of material fact. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 256 (1986). If the moving party meets this burden, the burden then shifts to the opposing party to set forth specific facts showing that a genuine issue remains for trial. Id. "Summary judgment procedure is properly regarded not as a disfavored procedural shortcut, but rather as an integral part of the Federal Rules as a whole, which are designed 'to secure the just, speedy and inexpensive determination of every action.'" Celotex Corp. v. Catrett, 477 U.S. 317, 327 (1986) (quoting FED. R.OF CIV. P. 1)).

"[T]he mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment; the requirement is that there be no genuine issue of material fact." Anderson, 477 U.S. at 247--48. Evidence raises a genuine issue of material fact if "the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Id. at 248. The Court must decide "whether the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law." Id. at 252. "[W]hen parties submit cross motions for summary judgment, each motion must be considered on its own merits." Fair Hous. Council v. Riverside Two, 249 F.3d 1132, 1136 (9th Cir. 2001).

"Credibility determinations, the weighing of the evidence, and the drawing of legitimate inferences from the facts are jury functions, not those of a judge . . . . The evidence of the non-movant is to be believed, and all justifiable inferences are to be drawn in his favor." Anderson, 477 U.S. at 255 (citing Adickes v. S.H. Kress & Co., 398 U.S. 144, 157 (1970)). "A 'justifiable inference' is not necessarily the most likely inference or the most persuasive inference. Rather, 'an inference as to another material fact may be drawn in favor of the nonmoving party . . . if it is rational or reasonable.'" United Steelworkers of America v. Phelps Dodge Corp., 865 F.2d 1539, 1542 (9th Cir. 1989) (quoting T.W. Elec. Serv. v. Pac. Elec. Contractors, 809 F.2d 626, 631 (9th Cir. 1987)).

I. Telecommunication Act ("TCA") - 47 U.S.C. § 332

ATC moves for summary judgment on its four claims under 47 U.S.C. § 332(c)(7): unreasonable discrimination, effective prohibition, unreasonable delay, and lack of substantial evidence.*fn1 The City moves for summary judgment on ATC's claims for unreasonable discrimination, effective prohibition, and substantial evidence. The Telecommunications Act affirms local government zoning authority "regarding placement, construction, and modification of personal wireless service facilities." 47 U.S.C. § 332(c)(7)(A). But that authority is limited. § 332(c)(7)(B). Specifically, local governments: "shall not unreasonably discriminate among providers of functionally equivalent services," § 332(c)(7)(B)(i)(I); "shall not prohibit or have the effect of prohibiting the provision of personal wireless services," § 332(c)(7)(B)(i)(II); "shall act . . . within a reasonable period of time," § 332(c)(7)(B)(ii); and any decision by a local government to deny a request for a personal wireless service facility must be supported by substantial evidence, § 332(c)(7)(B)(iii).

A. Substantial Evidence*fn2 "[T]he substantial evidence inquiry does not require incorporation of the substantive federal standards imposed by the TCA, but instead requires a determination whether the zoning decision at issue is supported by substantial evidence in the context of applicable state and local law." MetroPCS, Inc. v. City & Cnty. of S.F., 400 F.3d 715, 723--24 (9th Cir. 2005) (emphasis in original). The substantial evidence review is "deferential." Id. at 725. The Court may not "engage in [its] own fact-finding nor supplant the [City's] reasonable determinations." Id. "The upshot is simple: this Court may not overturn the [City's] decision on 'substantial evidence' grounds if that decision is authorized and supported by a reasonable amount of evidence (i.e., more than a 'scintilla' but not necessarily a preponderance)." Id.; see also Sprint PCS Assets, LLC v. City of Palos Verdes Estates, 583 F.3d 716, 721 (9th Cir. 2009).

San Diego Municipal Code § 141.0405 regulates communications towers like the Border and Mission Valley sites. Additionally, for sites located within a residential area, like the Border site, City of San Diego zoning code RS-1-7 also applies. The City appropriately considered the 90 and 180-foot towers and equipment buildings major communications facilities and evaluated the CUPs under those requirements. In addition to other requirements, "[m]ajor telecommunications facilities shall be designed to be minimally visible through the use of architecture, landscape architecture, and siting solutions, . . . us[ing] the smallest and least visually intrusive antennas and components that meet the requirements of the facility." S.D.M.C. § 141.0405. Accordingly, the regulations authorize the City to consider the visual impact of the tower, including whether the applicant has used design, architecture, and landscape architecture to minimize its visibility.

More than a scintilla of evidence supports the City's denial of the CUPs. As to the Mission Valley site, the City found that the 180-foot tower was a visual blight in the neighborhood, visible from I-8, I-805, Friars Road, and canyon rim homes above the valley. Additionally, the City found that the lattice tower was particularly obstructive because of extra materials, brackets, and cables affixed to the lattice. As to the Border site, the City found that the tower had a significant visual impact from the north and south I-805 and on the surrounding residential area, and noted the significant difference between the Border site and the other nearby towers that were much lower and camouflaged to minimize visibility.

The regulations authorize the City's consideration of these factors in denial because the City is charged with requiring designs that are minimally visible. Reviewing the record deferentially, as the Court must, the Court finds that the City's decision was supported by more than a scintilla of evidence. Accordingly, the Court grants summary judgment in favor of the City on this claim.

B. Unreasonable Delay

ATC argues that the City did not act on ATC's applications within a reasonable time, in violation of § 332(c)(7)(B)(ii). Section 332(c)(7)(B)(ii) requires local governments to "act on any request for authorization to place, construct, or modify personal wireless service facilities within a reasonable period of time . . ."

Without citation to authority, ATC asserts that the City's delay was per se unreasonable because it violated the Permit Streamlining Act ("PSA"). The Court disagrees. Unlike the PSA, which imposes an unwaivable deadline subject only to a possible 90-day extension, the breach of which may result in the approval of the application, ยง 332(c)(7)(B)(ii) only requires local governments to act within a reasonable time and does not preclude lengthy extensions of time. Given the parties' mutual agreement to extend the time for the City to act on ATC's applications, the applications were acted on within a ...

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